Kerala High Court

Beerankoya vs Muhammed Rafeek on 12 June, 2025

                                                            2025:KER:41440
Crl.Appeal No.507/2023              1

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                   THE HONOURABLE MR. JUSTICE GOPINATH P.

      THURSDAY, THE 12TH DAY OF JUNE 2025 / 22ND JYAISHTA, 1947

                           CRL.A NO. 507 OF 2023

          AGAINST THE JUDGMENT DATED 16.12.2017 IN CC NO.1317 OF 2016

OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOZHIKODE

APPELLANT:

              BEERANKOYA
              AGED 60 YEARS
              S/O.ASSAINARKUTTY N.P.,
              SHAMNAD MANZIL, POOLAKKADAVU ROAD, (P.O)KURUVATTOOR,
              KOZHIKODE., PIN - 673611


              BY ADVS.
              SRI.SANTHARAM.P
              SMT.REKHA ARAVIND
              SRI.P.G.GOKULNATH


RESPONDENTS:

      1       MUHAMMED RAFEEK
              AGED 49 YEARS,S/O. ABOOBACKER,
              AMEERMAHAL, CHAKKARASATH, (P.O) CIVIL STATION,
              KOZHIKODE, PIN - 673020

      2       STATE OF KERALA
              REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
              PIN - 682031
OTHER PRESENT:

              SRI,VIPIN NARAYAN SR.PP


THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.06.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                                         2025:KER:41440
Crl.Appeal No.507/2023                  2

                                  JUDGMENT

This appeal has been filed challenging the judgment in

C.C.No.1317/2016 on the file of the Judicial First Class Magistrate Court-I,

Kozhikode dismissing a complaint filed by the appellant under Section 138 of

the Negotiable Instruments Act, 1881 and acquitting the accused/1 st

respondent under Section 255(1) of the Cr.P.C.

2. The learned counsel for the appellant submits that a

perusal of the judgment of the trial Court will indicate that the trial court had

proceeded on the basis that the appellant had failed to produce any document

outlining the details of the transaction between the appellant and the

accused/1st respondent. It is submitted that the appellant had taken on lease

an Innova Car belonging to the 1 st respondent after paying a sum of Rs.5 lakhs

to the 1st respondent and on condition that the said amount of Rs.5 lakhs will

be returned [without interest] on the date on which the possession of the

vehicle is restored to the 1st respondent. It is submitted that there was a

written agreement between the appellant and the 1st respondent and

unfortunately, since the agreement was misplaced from the possession of

PW2 (daughter of the appellant), the agreement could not be produced before

the Court. It is submitted that the agreement has now been produced before

this Court along with Crl.M.A.No.1/2025 and the said document will indicate 2025:KER:41440

that the transaction between the appellant and the 1 st respondent/accused

could be easily proved. It is submitted that reading of paragraph 10 of the

impugned judgment will itself indicate that even at the time of trial, the

appellant had taken the contention that the document had been misplaced by

PW2. It is submitted that the Court proceeded on the basis that failure to

mention the fact that the document was misplaced at the time of filing the

complaint and during examination of PW1 (appellant)was fatal to the case of

the appellant. It is submitted that this finding is clearly wrong. It is submitted

that the alleged difference in handwriting used for filling up the amount in

words and in the signature and name of the 1 st respondent/accused should not

result in a finding that the cheque was not executed by the 1 st

respondent/accused.

3. Despite service of notice, there is no appearance for the 1 st

respondent/accused.

4. Having heard the learned counsel for the appellant, I am of

the view that since the appellant had a case at the time of trial that the

document evidencing the transaction between the appellant and the 1 st

respondent/accused was misplaced and that document has now been traced

out and produced before this Court, it is only just and proper that an

opportunity be given to the appellant to place the document before the trial

Court and proceed with the case accordingly. The trial court observed as 2025:KER:41440

follows in the impugned judgment:-

"10.The complainant examined his daughter as PW2. PW2 deposed that the receipt allegedly issued by the accused was misplaced by her. He further deposed that the fact of misplacement of document was known to the complainant even before filing the complaint. If the above said material document was misplaced as deposed by PW2, it should have been pleaded in the complaint itself. It is pertinent to note that complainant had no case during examination before the court that the said document was misplaced and not available to produce before the court as deposed by his witness. If the explanation for the non- production of the material document by PW2 was true, at least it should have been stated by PW1 himself before the court at the time of examination especially when there is no other document to prove the transaction and payment of Rs. 5 lakhs to the accused in the year 2010 i.e, 6 years before the alleged issuance of Ext.P1 cheque. In these background the evidence adduced by the complainant to prove the execution of Ext.P1 cheque by the accused in favour of the complainant has to be analysed and appreciated.

xxx xxx xxx

12. I have gone through the contention of the counsel in detail. To prove the execution of Ext.P1 cheque the prosecution relied the oral testimonies of PW1 and PW2. PW1 and PW2 did not witness the writing of the cheque, but they had witnessed only the putting of signature in Ext.P1 cheque by the accused. There is no dispute that the name of the payee, the amount and date in Ext.P1 cheque were written in one handwriting and the name of the drawer and signature of the drawer are put in different handwriting. The case of the complainant is that he had paid Rs. 5 lakhs to the complainant after receiving a written receipt acknowledging the payment. The said document is not produced before the court. There is no explanation from the side of the complainant for the non-production of the document. But without pleading the complainant introduced an oral evidence of his daughter to give an explanation for non-production of a material document. In these back ground the evidence of PW1 during cross-examination that Ext.Pl cheque was issued in the year 2010 has to be appreciated. The counsel for the complainant argued that it was only a slip of tongue and the complainant mistakenly referred the receipt allegedly issued in the year 2010 as Ext. Pl cheque. But on going through the fact of the case and contention of the parties this court disinclined to accept the explanation given by counsel for the complainant especially when the very case of the complainant is that the accused issued the cheque to discharge a time barred debt. It is pertinent to note that the complainant is not able to depose even the number of the vehicle allegedly owned by the accused and leased out to the complainant. A mere oral testimony that the complainant was used to lease our his Innova car to the customers and 2025:KER:41440

complainant took one of the Innova car on lease by paying Rs. 5 lakhs is insufficient to prove the rent a car business. The oral testimony of PW1 and PW2 about the execution of Ext. P1 cheque by the accused in front of them to discharge legally enforceable debt does not inspire the confidence of the Court. Hence this court can safely conclude that the complainant failed to prove that the accused executed and issued Ext.P1 cheque in favour of the complainant to discharge legally enforceable debt. Hence, these points are answered in favour of the accused and against complainant."

Thus it is clear that the trial Court proceeded to disbelieve the case of the

appellant mainly on the ground that no document evidencing the transaction

between the appellant/complainant and the 1st respondent/accused had been

produced. Since I am intending to remand the matter for fresh consideration

of the trial Court, it would not be proper for this Court to make any further

finding which might prejudice the 1 st respondent/accused in the proceedings

before the trial Court. Accordingly, without going into any other aspect of

the matter, this appeal is allowed.

5. The judgment dated 16.12.2017 in C.C.No.1317/2016 on the

file of the Judicial First Class Magistrate Court-I, Kozhikode is set aside and

the complaint is restored to the file of that Court for fresh disposal in

accordance with the law. It is made clear that it will be open to the appellant